Open-discovery rules won’t necessarily stop prosecutors from cheating

Sunday’s New York Times hits the nail on the head in an editorial here in which it laments that violations of the U.S. Supreme Court’s 50-year-old Brady rule, which requires prosecutors to disclose exculpatory evidence to the defense, remain ”widespread.” TheTimes might be overly optimistic, however, in its belief that open-files reforms like those adopted in North Carolina and Ohio that require full disclosure of law enforcement’s investigative files in a case will necessarily solve the problem.

Such rules will work only if prosecutors and law enforcement agencies follow them, and that’s far from guaranteed. In an Ohio case I am currently investigating, for example, information about the identification of an uncharged suspect was disclosed only after we learned from a witness that she had picked the man out of a photo lineup. The identity of a second suspect, which a co-defendant says she gave to both a detective and the prosecutor before she pleaded guilty, has still not been disclosed, nor has a summary of her statement that the only other person charged in the crime was not involved.

Defense attorneys and investigators should remain skeptical that prosecutors will always follow open-discovery rules any more than they always follow the Brady rule.

They should also be aware that another reform — the use of blindly administered sequential photo lineups — can still lead to misidentifications in the era of social media. In this same case, a witness admitted that she and others looked up the defendant’s photo on Facebook once they learned his name, which made picking out his photo later fairly easy. She now admits she was wrong.